VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF FAIRFAX

KASHYAP P. PATEL )
)
Plaintiff, )
)
v. ) Case No. CL2020-20690
)
)
CABLE NEWS NETWORK, INC. )
et al. )
)
Defendants. )
)

MEMORANDUM IN OPPOSITION
TO DEFENDANT’S DEMURRER
Plaintiff, Kashyap P. Patel (“Plaintiff” or “Patel”), by counsel, respectfully

submits this Memorandum in Opposition to the demurrer filed by defendant, Cable News

Network, Inc. (“CNN”).

I. INTRODUCTION

“Freedom of the press under the First Amendment does not include absolute

license to destroy lives or careers.” Curtis Pub. Co. v. Butts, 388 U.S. 130, 170 (1967)

(Warren, C.J., Concurring). The press has no “special immunity from the application of

general laws”, nor does it have a “special privilege to invade the rights and liberties of

others.” Branzburg v. Hayes, 408 U.S. 665, 684 (1972). 110 years ago, the Virginia

Supreme Court very clearly held that the press has no right to “invent facts” or to

“comment on the facts so invented” and, thereby, convince readers that the invented facts

are true. Simply put:

1
 “[l]iberty of the press is not license, and newspapers have no privilege to publish
falsehoods or to defame under the guise of giving the news. It is held that the
press occupies no better position than private persons publishing the same matter;
that it is subject to the law, and if it defames it must answer for it.”

Williams Printing Co. v. Saunders, 113 Va. 156, 73 S.E. 472, 477 (1912) (numerous

citations and quotations omitted); Dexter v. Spear, 7 F. Cas. 624-625 (1st Cir. 1825)

(Story, J.) (“No man has a right to state of another that which is false and injurious to

him. A fortiori no man has a right to give it a wider and more mischievous range by

publishing it in a newspaper … The liberty of speech and the liberty of the press do not

authorize malicious and injurious defamation. There can be no right in printers, any more

than in other persons, to do wrong.”); Murphy v. Boston Herald, Inc., 449 Mass. 42, 865

N.E.2d 746, 767 (Mass. 2007) (“No one would disagree with the importance of

upholding the freedom of the press. Nor would anyone disagree about the media’s right

(and duty) to examine the affairs of the judicial branch of government and to criticize

activities of judges and other court officials that do not meet the high standards expected

of judges and the courts. The press, however, is not free to publish false information

about anyone (even a judge whose sentencing decisions have incurred the wrath of the

local district attorney), intending that it will cause a public furor, while knowing, or in

reckless disregard of, its falsity.”).

The common law of libel protects a fundamental interest: an individual’s

“absolute” right to personal security including the uninterrupted entitlement to enjoyment

of his reputation. Fuller v. Edwards, 180 Va. 191, 198, 22 S.E.2d 26 (1942) (“[o]ne’s

right to an unimpaired limb and to an unimpaired reputation are, in each instance,

absolute and has been since common law governed England. Indeed, an impaired

reputation is at times more disastrous than a broken leg.”). The law of defamation guards

2
the reputations of private individuals and public figures, just as it protects the reputations

of every Judge on every Court. Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-12

(1990) (“Good name in man and woman, dear my lord, Is the immediate jewel of their

souls”) (quoting WILLIAM SHAKESPEARE, OTHELLO, act 3 scene 3)); Rosenblatt v.

Baer, 383 U.S. 75, 92-93 (1966) (“‘Society has a pervasive and strong interest in

preventing and redressing attacks upon reputation.’ The right of a man to the protection

of his own reputation from unjustified invasion and wrongful hurt reflects no more than

our basic concept of the essential dignity and worth of every human being—a concept at

the root of any decent system of ordered liberty … Surely if the 1950’s taught us

anything, they taught us that the poisonous atmosphere of the easy lie can infect and

degrade a whole society.”).

Kash Patel, an attorney, filed this action for defamation after CNN egregiously

libelled him in a series of online articles that CNN and its agents broadly republished to

millions on Twitter. [https://twitter.com/CNNPolitics/status/1331470685223391234].

The matter is before the Court on CNN’s demurrer. For the reasons stated below, the

demurrer should be OVERRULED.

II. STANDARD OF REVIEW

Virginia is a notice pleading jurisdiction. Rule 1:4(d) of the Rules of the Supreme

Court of Virginia expressly confirms that a complaint “shall” be sufficient “if it clearly

informs the opposite party of the true nature of the claim”.

The Virginia Supreme Court has consistently warned Circuit Courts about

granting demurrers and other motions that “short circuit” the legal process, deprive

litigants of their day in court and, ultimately, deprive the Supreme Court of an

3
opportunity to review a thoroughly developed record on appeal. Assurance Data, Inc. v.

Malyevac, 286 Va. 137, 139, 747 S.E.2d 804 (2013) (“This case is an example in which

the trial court ‘incorrectly ... short-circuited litigation pretrial and ... decided the dispute

without permitting the parties to reach a trial on the merits’”); Dodge v. Trustees of

Randolph-Macon Women’s College, 276 Va. 1, 7, 661 S.E.2d 801 (2008) (Lemons, J. and

Russell, J.) (dissenting) (citing Seyfarth, Shaw, Fairweather & Geraldson v. Lake Fairfax

Seven Ltd. Partnership, 253 Va. 93, 95, 480 S.E.2d 471 (1997) (same); id. Fultz v.

Delhaize America, Inc., 278 Va. 84, 88, 677 S.E.2d 272 (2009) (same); Catercorp, Inc. v.

Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277 (1993) (same); see id., Farrell v.

Fairfax County Board of Supervisors, 2020 WL 8837470, at * 2 (Fairfax Cir. 2020) (“a

demurrer cannot be used to decide the merits of a case, lest a trial court may incorrectly

short-circuit litigation pretrial and determine a dispute without permitting the parties to

reach a trial on the merits.”).

In Shumate v. Aaron, the Virginia Supreme Court reiterated that a demurrer tests

the legal sufficiency of facts alleged in the pleadings, but not the strength of proof. When

deciding a demurrer, a trial court must consider as true all the facts “expressly alleged,

those which fairly can be viewed as impliedly alleged, and those which may be fairly and

justly inferred from the facts alleged.” Shumate v. Aaron, 2015 WL 10990063, at * 2 (Va.

2015) (quoting Ayers v. Shaffer, 286 Va. 212, 216-217, 748 S.E.2d 83 (2013)). In

Shumate – a defamation case – the trial court, in ruling on defendant’s demurrer, “did not

consider as true the facts alleged in the amended complaint.” 2015 WL 10990063 at * 2.

The Supreme Court reversed. Id. (“the [circuit] court was bound to decide the demurrer

solely upon the facts as Shumate alleged them in the amended complaint.”).

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 III. DISCUSSION

The tell-tale sign of an impermissible “speaking demurrer” is that it alleges new

facts in support of itself. Pittman v. Walter, 2018 WL 9539006, at * 4 (Virginia Beach

Cir. 2018) (“A demurrer that alleges new facts in support of itself, such as the instant

pleading, is an impermissible speaking demurrer.”) (citing Patel v. Anjali, 81 Va. Cir.

264, 265 (Chesapeake Cir. 2020) (citing W. Hamilton Bryson, Bryson on Virginia Civil

Procedure § 6.03(5)(a) (4th ed. 2005)); Kuley v. Fayez, 2014 WL 10190138, at * 6

(Fairfax Cir. 2014) (“Since a demurrer searches the record, the defendant may not assert

new matter in his or her demurrer; a demurrer that alleges new facts is a ‘speaking

demurrer’ and will be stricken from the record.”) (citation and quotation omitted).

CNN presents a classic “speaking demurrer”. CNN impermissibly seeks to put

before the Court documents and “facts” that appear nowhere in Patel’s complaint and that

are not essential to his cause of action, and which are not the subject of a motion craving

oyer. CNN invites the Court to err.

PATEL SUFFICIENTLY ALLEGES A CLAIM OF DEFAMATION

Under Virginia law, the elements of a claim of defamation are “(1) publication of

(2) an actionable statement with (3) the requisite intent.” Tharpe v. Saunders, 285 Va.

476, 737 S.E.2d 890, 892 (2013). In assessing whether a plaintiff has stated a cause of

action for defamation, it is important to observe that while the Virginia Supreme Court

requires more specific pleading in certain cases, defamation cases are not among them.

See Hatfill v. New York Times, 416 F.3d 320, 329 (4th Cir. 2005) (“the usual standards of

notice pleading apply in defamation cases.”).

5
1. CNN’s Statements Are Actionable

To be actionable, a statement must be “both false and defamatory.” Goulmamine

v. CVS Pharmacy, Inc., 138 F.Supp.3d 652, 659 (E.D. Va. 2015) (quoting Jordan v.

Kollman, 269 Va. 569, 575, 612 S.E.2d 203 (2005)). In Virginia, at the demurrer stage in

a defamation case, “a court must accept as false any statements which the Complaint

alleges to be false.” Id. (citing Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th

Cir. 1993)); Morris v. Massingill, 2002 WL 32639765, at * 2 (Norfolk Cir. 2002)

(“Plaintiff is alleging that any statement that implies that he sexually abused a minor is

false and, at this juncture and for the purposes of Demurrer, that is sufficient for Plaintiff

to proceed.”). “Because the Court presumes falsity at this stage, the key actionability

question … is whether the statements referenced in the Complaint are defamatory.”

Goulmamine, 138 F.Supp.2d at 659.

Defamatory language “tends to injure one’s reputation in the common estimation

of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold

him up to scorn, ridicule, or contempt, or which is calculated to render him infamous,

odious, or ridiculous.” Schaecher v. Bouffault, 290 Va. 83, 92, 772 S.E.2d 589 (2015)

(citation omitted); see also Moseley v. Moss, 47 Va. (6 Gratt.) 534, 538 (1850)

(actionable defamation “tend[s] to make the party subject to disgrace, ridicule, or

contempt”)). In Carwile v. Richmond Newspapers, the Virginia Supreme Court

emphasized that “[i]n order to render words defamatory and actionable, it is not necessary

that the defamatory charge be in direct terms but it may be made indirectly, and it matters

not how artful or disguised the modes in which the meaning is concealed if it is in fact

defamatory.” 196 Va. 1, 7, 82 S.E.2d 588 (1954); see id. Hyland v. Raytheon Tech. Serv.

6
Co., 277 Va. 40, 47, 670 S.E.2d 746 (2009) (“Defamatory statements may include

statements made by inference, implication, or insinuation.”) (citations omitted).

A statement is defamatory per se if it “impute[s] to a person the commission of

some criminal offense involving moral turpitude, for which the party, if the charge is

true, may be indicted and punished” or of it “impute[s] to a person unfitness to perform

the duties of an office or employment of profit, or want of integrity in the discharge of the

duties of such an office or employment” or if it “prejudice[s] such person in his or her

profession or trade.” Tronfeld v. Nationwide Mutual Insurance Company, 272 Va. 709,

713, 636 S.E.2d 447 (2006) (citing Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632

(1981)).

“Every false and unauthorized imputation, spoken, written, or printed which

imputes to a business or professional man conduct which tends to injure him in his

business or profession is libelous and actionable without allegation or proof of special

damages. Hence, words and statements which charge an attorney at law with unethical or

unprofessional conduct and which tend to injure or disgrace him in his profession are

actionable per se.” Carwile, 196 Va. at 8, 82 S.E.2d at 592 (cited in Fleming, 221 Va. at

890, 275 S.E.2d at 636 (“because an attorney is required to adhere to the disciplinary

rules, charging an attorney with unethical conduct is defamatory per se”)); id. Foreman v.

Griffith, 81 Fed.Appx. 432, 433 (4th Cir. 2003) (“The primary accusation against

Foreman [a Deputy City Attorney] in the Report was that he engaged in unethical

favoritism of Tidewater Towing, Inc. at the City’s expense and to enrich himself.

Foreman alleges that the accusation is false and damaged his professional reputation.”);

Baxter v. Belisle, 2019 WL 2146596, at * 18 (E.D. Va. 2019) (“because Baxter’s

7
statement may impute to Frances, an attorney, the commission of a crime, it meets

defamatory meaning as defamation per se”); Cretella v. Kuzminski, 640 F.Supp.2d 741,

747 (E.D. Va. 2009) (statement “questioning Plaintiff’s ethical conduct as a practicing

attorney, accusing him of the criminal act of extortion, and stating that Plaintiff had been

discharged from his employment with a law firm as a result of such conduct”); Tronfeld

v. Nationwide Mutual Insurance Company, 272 Va. 709, 713, 636 S.E.2d 447 (2006)

(insurance adjuster’s statements that attorney “just takes people’s money” and clients

received less for their claims because of attorney’s services were actionable); Donner v.

Rubin, 2008 WL 8201377, at * 6 (Chesapeake Cir. 2008) (defendant’s letter falsely

accused the plaintiff, a lawyer, of “unethical and unprofessional conduct”, various

“frivolous actions”, and suggested that “plaintiff could be subjected to disciplinary

proceedings by the State Bar”); compare Goulmamine v. CVS Pharmacy, Inc., 138

F.Supp.3d 652, 659 (E.D. Va. 2015) (stating that a physician has committed misconduct

worthy of losing his license to practice medicine or dispense controlled substances is

sufficiently similar to suggesting an attorney has committed conduct worthy of

disbarment); Echtenkamp v. Loudoun County Public Schools, 263 F.Supp.2d 1043, 1064

(E.D. Va. 2003) (statements that “could be construed to either imply or to state directly

that plaintiff lacks integrity or is unfit for her profession” were actionable).

CNN plainly accused Patel of criminal, fraudulent, unethical and unprofessional

conduct. To say of an attorney that he is connected to efforts to spread “conspiracy

theories” and “coerce” a foreign government – when he absolutely is not – is highly

defamatory. It imputes participation in criminal wrongdoing for which a former United

States President was subject to impeachment. To say of an attorney that he worked to

8
“discredit” a special prosecutor’s probe – when he did no such thing – imputes, at the

least, obstruction of justice.1 To say of an attorney that he interfered with or impeded the

orderly transition of the Pentagon to a new administration – when the statement is false –

imputes seriously unethical, unprofessional and insubordinate behavior. [Compl., ¶ 17];

compare Gilmore v. Jones, 370 F.Supp.3d 630, 673 (W.D. Va. 2019) (“Creighton’s

insinuation that Gilmore had foreknowledge of a violent attack and filmed it for

clandestine political purposes is precisely the sort of factual assertion that would tend to

‘harm the reputation of another as to lower him in the estimation of the community,’

‘deter third persons from associating’ with him, and make him ‘appear odious’ or

‘infamous.’”) (quotation and citation omitted).

2. CNN Published The Statements With Actual Malice

The requisite intent a plaintiff must prove in a defamation action depends upon

the plaintiff’s status as a private individual or public figure, and the damages sought.

Under Virginia law, a private individual may recover upon proof by a preponderance of

the evidence that the defendant either knew the publication to be false, “or believing it to

be true, lacked reasonable grounds for such belief, or acted negligently in failing to

ascertain the facts on which the publication was based.” The negligence standard is

applicable to “media and non-media defendants alike”. Gazette, Inc., 229 Va. at 15, 325

S.E.2d at 725. As to a public figure, on the other hand, a plaintiff must ultimately prove

that the defendant made the statement with “actual malice”—that is, “with knowledge

that it was false or with reckless disregard of whether it was false or not.” N.Y. Times Co.

v. Sullivan, 376 U.S. 254, 280 (1964) (cited in Jordan, 269 Va. at 577, 612 S.E.2d at 207

1
Contrary to CNN’s argument, Patel has never admitted or pleaded the
truth of the “Mueller Probe Statement”.

9
(to prove “actual malice” at trial, the must “demonstrate by clear and convincing

evidence that the defendant realized that his statement was false or that he subjectively

entertained serious doubt as to the truth of his statement.”)). “To recover punitive

damages, all defamation plaintiffs must show actual malice”. Jordan, 269 Va. at 577, 612

S.E.2d at 207 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-350 (1974)); Vaile v.

Willick, 2008 WL 294477, at * 6 (W.D. Va. 2008) (“there is no heightened pleading

standard for punitive damages, only a “short and plain statement of the claim” under

Federal Rule of Civil Procedure 8(a). Plaintiff has alleged that Defendants acted with

actual malice in sending the false and defamatory letters, meaning Defendants published

the statements with knowledge of their falsity or with reckless disregard for the truth.

These allegations plainly state a claim for punitive damages.”).

“The existence of actual malice may be shown in many ways. As a general rule,

any competent evidence, either direct or circumstantial, can be resorted to, and all the

relevant circumstances surrounding the transaction may be shown, provided they are not

too remote, including threats, prior or subsequent defamations, subsequent statements of

the defendant, circumstances indicating the existence of rivalry, ill will, or hostility

between the parties, facts tending to show a reckless disregard of the plaintiff’s rights,

and, in an action against a newspaper, custom and usage with respect to the treatment of

news items of the nature of the one under consideration.” Herbert v. Lando, 441 U.S.

153, 164 fn. 12 (1979) (quotation omitted); see Harte-Hanks Commc’ns, Inc. v.

Connaughton, 491 U.S. 657, 668 (1989) (noting that, although “courts must be careful

not to place too much reliance on such factors,” it “cannot be said that evidence

concerning motive or care never bears any relation to the actual malice inquiry”); St.

10
Amant v. Thompson, 390 U.S. 727, 732 (1968) (“Professions of good faith will be

unlikely to prove persuasive, for example, where a story is fabricated by the defendant,

[or] is the product of his imagination”);2 Curtis Publishing Co., 388 U.S. at 157 (“The

Saturday Evening Post knew that Burnett [the source] had been placed on probation in

connection with bad check charges, but proceeded to publish the story on the basis of his

affidavit without substantial independent support”); Tomblin v. WCHS-TV8, 434

Fed.Appx. 205, 210 (4th Cir. 2011) (“on the question of whether WCHS–TV8

deliberately or recklessly conveyed a false message to sensationalize the news and thus to

provide factual support for a finding of malice, there are disputed facts”); Steele v.

Goodman, 382 F.Supp.3d 403, 422 (E.D. Va. 2019) (defendants reviewed plaintiff’s

website prior to publication and, therefore, knew their statements were false – “These

minimal allegations suffice—at least at this stage—to plausibly show that that Negron

made these statements with actual malice.”); Spirito v. Peninsula Airport Commission,

350 F.Supp.3d 471, 481 (E.D. Va. 2018) (where Plaintiff’s shredding of documents was

an “ordinary and public occurrence, even during the VDOT investigation”, and the

defendants “were aware of Plaintiff’s regular shredding as an innocent activity”, “the

Court may plausibly infer that Defendants Ortiz, Thomas, Ford, and Scott entertained

serious doubts about whether Plaintiff’s shredding on March 2 was improper.”); see also

Nunes v. W.P. Company, LLC, 2021 WL 3550896, at * 5 (D. D.C. 2021) (“A

2
In Jordan v. Kollman, the Circuit Court overruled the defendant’s
demurrer, and the case went to trial. At trial, the plaintiff failed to provide clear and
convincing evidence that the defendant’s ads were “fabricated” by him or a “product of
his imagination.” Rather, the defendant “testified that he relied on public information as
reported in the March 1st article for the content of his ads”. 269 Va. at 581, 612 S.E.2d at
209. In this case, Patel alleges that CNN intentionally fabricated the statements.
This establishes actual malice.

11
newspaper’s own prior (and correct) reporting that is inconsistent with its later (and

incorrect) reporting could certainly give the paper reason to seriously doubt the truth of

its later publication—just as a source’s pre-publication recantation may be evidence that a

publisher had reason to doubt the source’s original claims.”) (emphasis in original).

Typically, actual malice is shown by an “accumulation” of evidence and

inferences. Celle v. Filipino Reporter Enterprises, Inc., 209 F.3d 163, 183 (2nd Cir. 2000)

(in order to infer actual malice, the facts alleged “should provide evidence of ‘negligence,

motive and intent such that an accumulation of the evidence and appropriate inferences

supports the existence of actual malice.’”) (quoting Bose Corp. v. Consumers Union of

the United States, 692 F.2d 189, 196 (1st Cir. 1982) (emphasis added in original));

Goldwater v. Ginzburg, 414 F.2d 324, 342 (2nd Cir. 1969) (“There is no doubt that

evidence of negligence, of motive and of intent may be adduced for the purpose of

establishing, by cumulation and by appropriate inferences, the fact of a defendant’s

recklessness or of his knowledge of falsity.”); Gilmore, 370 F.Supp.3d at 673 (“Although

neither the pursuit of a preconceived narrative nor a failure to observe journalistic

standards is alone ultimately enough to establish actual malice, Gilmore’s factual

allegations, taken together, are sufficiently plausible to support an inference that

Creighton published statements about him with actual malice.”); Eramo v. Rolling Stone,

LLC, 2016 WL 5234688, at * 5 (W.D. Va. 2016) (“Although failure to adequately

investigate, a departure from journalistic standards, or ill will or intent to injure will not

singularly provide evidence of actual malice, the court believes that proof of all three is

sufficient to create a genuine issue of material fact. Plaintiff, however, goes further.

Pointing to Erdely’s own reporting notes [obtained in discovery], plaintiff also forecasts

12
evidence that could lead a reasonable jury to find that Erdely had ‘obvious reasons to

doubt [Jackie’s] veracity’ or ‘entertained serious doubts as to the truth of [her]

publication.’”).

Patel’s complaint alleges that CNN knew its statements were false and that CNN

acted with reckless disregard for the truth. [Compl., ¶¶ 5, 20]; compare Vivera

Pharmaceuticals, Inc. v. Gannett Co., Inc., 2021 WL 6550461, at * 4 (Fairfax Cir. 2021)

(“In the Complaint, Vivera alleges Defendants sought out one-sided statements from

attack pieces against the company. It also alleges Defendants relied on articles and

information that were later retracted. Vivera further claims Defendants failed to

investigate public records revealing the falsity of its statements and the FDA standards it

refers to in the Article. These are only a few examples of the ways in which Vivera

claims the existence of malice. Whether Defendants actually acted with malice must be

left to the factfinder to determine.”); Lanier v. Squicciarini, 2019 WL4259756, at * 3

(Va. Beach Cir. 2019) (the allegations that “[t]he defendant appears to be maliciously

motivated by revenge,” and “‘published his Letter with either actual knowledge of falsity,

[or] reckless disregard of whether his statements were false or not’ are sufficient to

survive demurrer.”); Kinney v. Williamscraft, Inc., 1988 WL 619399, at * 3 (Spotsylvania

County 1988) (“Here, the counterclaim alleges that the statements were false, and were

published with actual malice, with knowledge of their falsity or a reckless disregard for

their truth. This states a claim upon which punitive damages are recoverable.”); Kay v.

Collins, 1996 WL 1065519, at * 3 (Richmond Cir. 1996) (“Because this is a factual

question that cannot be resolved on demurrer, and because the amended motion for

judgment specifically alleges malice, this issue must be decided against defendant”).

13
 As in Vivera, Lanier, Kinney and Kay, CNN’s demurrer to Patel’s claim of

defamation should be OVERRULED.

3. The Fair Report Privilege Does Not Apply

Virginia’s fair report privilege protects the publication of “accounts of public

proceedings or reports” — for example, records of judicial proceedings — “despite their

defamatory nature.” Agbapuruonwu v. NBC Subsidiary (WRC-TV), LLC, 821 Fed.Appx.

234, 239 (4th Cir. 2020) (quotation and citation omitted). The privilege is qualified. In

Alexandria Gazette Corp. v. West, the Virginia Supreme Court held that the publication

of public records to which everyone has a right of access is only privileged, “if the

publication is a fair and substantially correct statement of the transcript of the record.”

198 Va. 154, 159, 93 S.E.2d 274 (1956).

The issue whether or not a publication is subject to the fair report privilege is to

be decided by the Court only when the evidence is not in conflict, either as to the

occasion of the privilege or the abuse thereof. West, 198 Va. at 163-164, 93 S.E.2d at

281-282 (citations omitted). In West, for instance, “all the facts in connection with the

publication of the language complained of are without dispute. There is no conflict in the

testimony as to the facts upon which the claim of privilege rests. There are no mixed

questions of law and fact to take the case to the jury as to whether or not the publication

was made in good faith and was substantially correct.” 198 Va. at 160-161, 93 S.E.2d at

280.

Whether CNN’s statements are protected by the fair report privilege is not an

issue that can be resolved on demurrer. Cretella, 2008 WL 2227605 at * 10 (“whether a

14
defendant in a defamation action is protected by a privilege is not a matter to be resolved

in the context of a motion to dismiss”); Castle v. Rite Aid Corporation, 2015 WL

13801186, at * 6 (Westmoreland Cir. 2015) (“Even though public policy encourages and

supports citizens reporting crimes to the police and a qualified privilege may apply in

such circumstances, a claim of qualified immunity is essentially an affirmative defense”).

Unlike West, Patel alleges that no privilege applies to CNN’s false and defamatory

statements. [Compl., ¶ 16].

Further, it is well-established that a qualified privilege is abused and lost if:

1. the defendant knew the statement was false or made it with

reckless disregard of whether it was false or not; or

2. the statement was deliberately made in such a way that it was

heard by persons having no interest or duty in the subject of the statement; or

3. the statement was unnecessarily insulting; or

4. the language used was stronger or more violent than was necessary
under the circumstances; or

5. the statement was made because of hatred, ill will or a desire to

hurt the plaintiff rather than as a fair comment on the subject.

Smalls v. Wright, 241 Va. 52, 54-55, 399 S.E.2d 805 (1991) (citing Great Coastal Exp.,

Inc. v. Ellington, 230 Va. 142, 334 S.E.2d 846 (1985)); id. See Isle of Wight v. Nogiec,

281 Va. 140, 155, 704 S.E.2d 83 (2011) (“the circuit court properly submitted to the jury

the issue of whether the statements were made with malice.”). The Virginia Supreme

Court has repeatedly held in defamation cases that the question whether a defendant was

“actuated by malice” sufficient to defeat a qualified privilege is a question of fact for a

jury to decide. See, e.g., Cashion v. Smith, 286 Va. 327, 338, 749 S.E.2d 526 (2013)

(“this Court has repeatedly recognized that the question of whether a statement was made

15
in good faith is a question of fact for the jury to decide when determining whether a

qualified privilege has been lost or abused … [In addition,] the issue of whether there was

malice is a question of fact for the jury, and a showing of pre-existing personal spite or ill

will is only one of several ways in which a privilege can be lost”); Fuste v. Riverside

Healthcare Ass’n, Inc., 265 Va. 127, 134-135, 575 S.E.2d 858 (2003) (same); Larimore

v. Blaylock, 259 Va. 568, 575-576, 528 S.E.2d 119 (2000) (“The rule of qualified

privilege that we adopted years ago continues to encourage open communications on

matters of employment while not shielding the use of such communications for an

individual’s personal malicious purposes”); id. Goulmamine v. CVS Pharmacy, Inc., 2015

WL 5920009, at * 3-4 (E.D. Va. 2015) (“the question of whether a defendant has lost or

abused a privilege is a question of fact”); Harrington v. Sprint Nextel Corp., 2008 WL

2228524, at * 6 (E.D. Va. 2008) (“[T]he question whether a defendant was actuated by

malice, and has abused the occasion and exceeded the privilege is a question of fact for a

jury rather than one for the Court to determine”) (quotations omitted).

Whether CNN’s statements were made in “good faith”, whether they were “fair

and substantially correct”, and whether CNN abused the qualified privilege are matters

for the jury in this case.3

3
Even if it were proper for the Court to consider the House Democrats’
“Ukraine Report” in connection with CNN’s demurrer, CNN admits that Patel only
appears twice in the entire 332-page report (pages 58 and 62). First, the partisan report
states that Rudolph Giuliani (“Giuliani”) engaged in a “flurry” of calls with convicted
felon, fraudster and wholly unreliable source, Lev Parnas, and others on May 10, 2020.
Giuliani also spoke with Patel. It was a personal conversation. The substance of the call
is undisclosed and, accordingly, the “Ukraine Report” does not connect Patel to
Giuliani’s “undisputed efforts to spread conspiracy theories through a diplomatic
‘backchannel’ to Ukraine.” [CNN Memorandum, p. 8]. The “Ukraine Report” also
describes some vague speculation and triple hearsay testimony by Fiona Hill (“Hill”).
The truth is Patel never discussed Ukraine with President Trump and never provided any
“materials” to the President. Hill perjured herself.

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4. Section 8.01-223.2 Does Not Immunize CNN

Section 8.01-223.2(A) provides that a person “shall be immune from civil liability

for a … claim of defamation based solely on statements … regarding matters of public

concern that would be protected under the First Amendment to the United States

Constitution made by that person that are communicated to a third party”. However, §

8.01-223.2(A) goes on to provide that “the immunity provided by this section shall not

apply to any statements made with actual or constructive knowledge that they are false or

with reckless disregard for whether they are false.” (Emphasis added).

CNN’s demurrer pursuant to § 8.010223.2 should be overruled for several

reasons. First, the immunity provided by § 8.01-223.2 does not apply because CNN’s

statements were made with actual or constructive knowledge that they are false or with

reckless disregard for whether they are false. Patel alleges that CNN had actual

knowledge that Patel did not engage in the misconduct charged in the articles. See Steele

v. Goodman, 382 F.Supp.2d 403, 427 (E.D. Va. 2019) (“the Amended Complaint is

replete with assertions that Goodman made the multitude of statements with actual

knowledge of their falsity”); Vivera Pharmaceuticals, Inc., 2021 WL 6550461 at * 4

(“Even if the statements are privileged, Vivera’s claims should not be dismissed because

the complaint properly alleges malice as described above. Therefore, it would be

premature to dismiss Vivera’s claims under the theory of qualified privilege.”). Second,

the analytical format for interpreting § 8.01-223.2 “follows the Virginia Supreme Court’s

model for qualified privilege.” Alexis v. Kamras, 2020 WL 7090120, at * 21 (E.D. Va.

2020). Whether the privilege is overcome by virtue of a defendant’s improper mental

state (i.e., a reckless disregard for the truth or actual or constructive knowledge of a

17
statement’s falsity) “is a jury question”. Id. (“Here, the Court finds that statutory

immunity does attach to the statements made by Kamras; however, the question of

whether Kamras lost that immunity by virtue of an improper mental state is a question of

fact that should go to a jury.”). Here, as in Kamras, Patel is entitled to discovery and a

trial by jury.4

5. Patel Does NOT Need To Allege Special Damages

Finally, CNN suggests that in the absence of a “per se defamatory meaning”,

Patel must allege “special damages”. This is incorrect as a matter of law. Fleming, 221

Va. at 894, 275 S.E.2d at 638-639 (“in libel actions not based upon per se defamation,

where knowing falsity or reckless disregard for the truth is not shown, the compensatory

damages should be limited to the actual damages proved to have been sustained, but such

damages should not necessarily be restricted to out-of-pocket loss. Therefore, we hold

that Moore is entitled to recover compensatory damages upon proof of actual injury,

including such elements as damage to his reputation and standing in the community,

4
Even if there was a basis to sustain CNN’s demurrer pursuant to § 8.01-
223.2, the Court should deny CNN’s request for fees. Courts have sometimes looked to
whether an award of attorney’s fees is necessary to address an imbalance in resources or
to protect a defendant from a plaintiff with an unfair financial advantage, or whether an
award of fees would unfairly discourage other plaintiffs from bringing colorable claims.
Fairfax v. CBS Broadcasting, Inc., 534 F.Supp.3d 581, 602 (E.D. Va. 2020). As amply
demonstrated in this case, CNN is well positioned to defend itself and is not a financially
vulnerable victim, outmatched by Patel’s resources. An award of fees under the
circumstances of this case would have too high a potential to deter future litigants with
colorable claims against CNN. Id. Further, Patel’s allegations are clearly not frivolous or
made in bad faith. Id. at 601 (“Though legally insufficient to state a claim, Fairfax’s
allegations are not so ‘groundless, frivolous, or unreasonable’ or so lacking in a
substantial basis in fact and law as to warrant an award of fees”); see also
Agbapuruonwu, 821 Fed.Appx. at 242 (“we discern no abuse of discretion in the district
court's denial of NBC’s request for attorney fees”); Flanagan v. Pittsylvania County,
Virginia, 2020 WL 2754754, at * 10 fn. 6 (W.D. Va. 2020) (“Flanagan’s theory of
defamation is not so meritless such that awarding fees would serve the purposes of §
8.01-223.2.”).

18
embarrassment, humiliation, and mental suffering. ‘Special damages’, which under the

common-law rule must be shown as a prerequisite to recovery where the defamatory

words are not actionable per se, are not to be limited to pecuniary loss.”) (citing Gertz,

418 U.S. at 350 (“[A]ctual injury is not limited to out-of-pocket loss. Indeed, the more

customary types of actual harm inflicted by defamatory falsehood include impairment

of reputation and standing in the community, personal humiliation, and mental anguish

and suffering.”)).

CONCLUSION AND REQUEST FOR RELIEF

For the reasons stated above and at the hearing of this matter, Patel respectfully

requests the Court to deny CNN’s demurrer.

DATED: March 22, 2022

KASHYAP P. PATEL

By: /s/ Steven S. Biss

Steven S. Biss (VSB # 32972)
300 West Main Street, Suite 102
Charlottesville, Virginia 22903
Telephone: (804) 501-8272
Facsimile: (202) 318-4098
Email: [email protected]

Counsel for the Plaintiff

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 CERTIFICATE OF SERVICE

I hereby certify that on March 22, 2022 a copy of the foregoing was served

electronically in PDF upon counsel for the Defendants.

By: /s/ Steven S. Biss

Steven S. Biss (VSB # 32972)
300 West Main Street, Suite 102
Charlottesville, Virginia 22903
Telephone: (804) 501-8272
Facsimile: (202) 318-4098
Email: [email protected]

Counsel for the Plaintiff

20